https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3433

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MALINDI** **ELC CASE NO. 6 OF 2018** **JUNE GERALDINE WAMBUI KIRAGU…………………………………….... PLAINTIFF** **VERSUS** **EMMANUEL BAHATI NGALA………………………………………………. DEFENDANT** **RULING** There are two applications in this matter that have come up for determination, the Notice of Motion dated **24th April, 2025** and also the one **15th September, 2025**. The prayers in the Motion dated 24th April, 2025 are as follows: 1. ***THAT*** *an order for eviction be issued to the Court Bailiff Malindi Law Courts to evict the Defendant/Respondent or any person in occupation or residing on the properties known as LR NO. CR 19825/1, Portion No. 4514) Orig. No. 366/30) Malindi and LR NO. CR 19826/1. Portion No. 4515 (Origin NO. 366/31) Malindi and to demolish any permanent or temporary buildings built on the said property and to give the applicant therein vacant possession thereof;* 2. *The OCS, Malindi Police Station to be ordered to give police escort, security, protection and/or assistance to the Court Bailiff Malindi Law Courts in execution of the Court Orders.* The grounds relied on for that Motion are set out as follows: 1. *THAT the applicant herein was issued with a decree by this Honourable Court on 28th November, 2019 confirming on declaring that the Applicant is the lawful owner of the suit properties known as LR NO CR 19825/1, Portion No. 4514 (Orig. No. 366/30) Malindi and LR NO. CR 19826/1, Portion No. 4515 (Origin. No. 366/31) Malindi;* 2. *THAT the Honourable Court further ordered that the Defendant/Respondent together with his agents do give vacant possession of the properties to the plaintiff herein and the officer commanding Station Malindi Police Station do supervise the execution of and compliance of the order herein;* 3. *THAT the Honourable Court issued orders of stay and set aside the Judgment and the decree and further ordered for the suit to be heard on merit and the Defendant was ordered to pay throw away costs of Kshs 30,000/- from the date of the order failure to which the orders will lapse;* 4. *THAT the Defendant after obtaining the stay orders failed to comply and the orders of stay elapsed;* 5. *THAT the Defendant has failed to make any efforts to comply with the orders or defend himself and is bent on staying on the land contrary to the court orders.* 6. *THAT the Respondent still continues to utilize the suit property at the Applicant’s expense and has welcomed other strangers to the suit property;* 7. *THAT it is necessary that the Honourable Court do issue the eviction orders against the Respondent and his agents and all persons on the suit property and demolition of any structure thereof;* 8. *THAT the OCS Malindi Police Station be ordered to provide security and supervise the execution exercise herein.* The prayers in the Motion dated 15th September, 2025 are as follows: 1. *That the Honourable Court be pleased to certify this application as most urgent;* 2. *That the Honourable Court be pleased to reinstate its orders for stay of execution setting aside the Judgment and Decree issued on 2nd March, 2022 and further orders to issue pending the hearing and determination of the application on merit upon payment of the throw away costs of Kshs 30,000/- in favour of the Applicant’s application dated the 24th day of April, 2025;* 3. *That the costs of this application be in the cause.* The application dated15th September, 2025 is premised on the following grounds: 1. *That the Applicant/Defendant herein is in physical occupation of part of the suit property reference LR NO. CR 19825/1, Portion No. 4515 (Orig. No. 366/30 Malindi and LR NO. CR 19826/1, Portion No. 4515 (Origin No. 366/31 Malindi which is the Applicant’s only surviving home and his family currently residing in.* 2. *That upon the Honourable Court’s Judgment of 22nd November 2019, the Applicant promptly instructed the then counsel on record for the Applicant/Defendant to file an application for stay of execution of the Judgment together with the decree therein.* 3. *That the Counsel instructed to proceed with the stay of execution required that the Applicant/Defendant to pay Kshs 30,000/- meant for throw away costs which the Applicant/Defendant herein paid for his Advocate on record for onward transition as required.* 4. *That the applicant/defendant believed his Advocate and since then the Applicant/Defendant was waiting for the hearing of the suit but surprisingly he was served with application dated 24th April 2025 allowing the Court bailiff to enter and evict the Applicant/Defendant without being heard.* 5. *That evidently the Counsel for the Applicant/Defendant has been dogging the Applicant and this fact was not made known to the Applicant on time but long after the time frame lapsed, the applicant all along believed his Advocate on record.* 6. *That the Applicant/Defendant herein is at risk being rendered homeless at any time if the Respondents/Plaintiff’s application dated 24th April 2025 is heard as scheduled on 17th day of September, 2025 and wherefore; the Applicant will be prejudiced for not being heard on merit for justice and equity to prevail.* 7. *That the delay in complying with this Court’s orders of 2nd day of March 2022 arose purely from the deceptive conduct of my formal Advocates on record who were representing the Applicant/Defendant in this matter; who the Applicant/Defendant entrusted and give Kshs 30,000/- meant for throw away costs for onward transmission to the Plaintiff’s advocates, yet failed to do so.* 8. *That the Applicant/Defendant has since realized and is ready to comply with the court’s order but only upon the court granting stay of execution such that the matter be concluded on merit basis and further allow the Applicant to pay the aforesaid Kshs 30,000/- as throw away costs.* 9. *That unless this applications is heard on priority basis and prayer 2 be granted as sought, the Applicant’s right to be heard on merit will be extinguished permanently, and the intended defence which raises weighty and arguable legal issues will be rendered nugatory by the imminent eviction and demolition of the suit property.* 10. *That this application is made in good faith without undue delay from the moment the Applicant/Defendant discovered the fraud and it is in the interest of justice and if this application is not allowed, execution will be carried out and the Applicant/Defendant stand to suffer grave losses which cannot be compensated in monetary terms.* 11. *That the Applicant’s/Defendant’s family property is at risk as there are no orders of staying any court action in favour of the Applicant/Defendant herein.* 12. *That the Applicant/Defendant has a meritorious Defence and prayers to be accommodated by the Honourable Court to meet the ends of justice and in the interest of equity.* **ANALYSIS AND DETERMINATION.** The background to the two applications is as follows: that judgment issued on 22/11/2019 and the plaintiff is yet to execute the same; that the respondent still continues to utilize the suit property and is welcoming other strangers to the suit property; that the plaintiff wishes to execute the judgment. That the defendant filed a motion of 22/12/2020 seeking *inter alia*, stay of execution, but he failed or neglected to comply with the conditions of stay and the stay orders lapsed. I must consider the order in which I will determine the applications first, and in my opinion, the defendant’s application dated 15th September 2025 ought to be heard first. In his application the defendant avers that he is in physical occupation of the suit land. that it is his only surviving home; that the defendant paid the fee of Kshs 30,000/= required to be paid as condition for stay to his advocate for remittance to court, but the next thing he became aware of was the service on him of the plaintiff’s application dated 24th April 2025. He has attached a copy of a receipt dated 16th March 2022 issued by Omagwa Angima & Co advocates in support of the allegation that he forwarded them the Kshs 30,000/ to pay to court as thrown away costs to secure the stay pending appeal. His application for stay had been granted as unopposed on 2/3/2022 on condition he paid the said sum of Kshs 30,000/-. On 14/6/22 his counsel alleged that the plaintiff’s counsel had declined to receive the thrown away costs and he was ordered to deposit the money in court instead for release to the plaintiff’s counsel. Thereafter the matter was serially listed normally for pretrials without any indication that the Kshs 30,000/= had been deposited with the court as ordered. Three years later, the plaintiff changed advocates vide order of court made on 23/1/25 and filed his current application and the defendant awoke from his long slumber and filed his own application now under consideration. Clearly, the defendant’s application is a knee jerk reaction to the plaintiff’s application dated 24/4/2025. I say so because he has failed to demonstrate that any efforts were made to deposit the thrown away fees to court. The order setting aside judgment was self-executing in that upon failure to pay such monies, the order was to lapse and judgment would be revived and be restored and be available for execution. Though he laments that he never received any communication from his advocates until after the plaintiff’s current application was filed, the defendant does not explain why, being the plaintiff, he did not visit the advocates’ office to establish the fate of his case during the three-year period between the making of the stay order and the filing of the plaintiff’s application that awoke him from slumber. It may be true that he forwarded the money to his advocate for onward transmission to court. It is also true that sometimes the courts do excuse counsel for their mistakes while appearing for parties in matters. In the case of *Njuca Consolidated Company Ltd v Commercial International Bank & 2 others [2025] KEHC 2990 (KLR)* the court stated as follows: *“However, it is not in every case that a mistake committed by an advocate would be a ground for setting aside orders of the court. In Savings and Loans Limited vs Susan Wanjiru Muritu Nairobi (Milimani) HCCS No. 397 of 2002, Kimaru J (as he then was) held: -* *“Whereas it would constitute a valid excuse for the defendant to claim that she had been let down by her former advocates failure to attend court on the date the application was fixed for hearing, it is trite that a case belongs to a litigant and not to her advocate. A litigant has a duty to pursue the prosecution of his or her case. The court cannot set aside dismissal of a suit on the sole ground of a mistake by counsel of the litigant on account of such advocate’s failure to attend court. It is the duty of the litigant to constantly check with her advocate the progress of her case. In the present case, it is apparent that if the defendant had been a diligent litigant, she would have been aware of the dismissal of her previous application for want of prosecution soon after the dismissal.” (emphasis mine)* For the defendant who held a proposed counterclaim, I find that he had an equal duty to push for the prosecution of both the plaintiff’s and his case. Now that there were lapsed orders, his duty became even greater, first to revive the orders before the plaintiff came up with execution proceedings and secondly, to seek the manner of hearing of his proposed counterclaim, whether the plaintiff was cooperative in that respect or not. If he allowed the plaintiff to precede him to execution before his tackling of such issues in this case, he can not wail to this court that his property is at risk of execution, for it is axiomatic that where there is no existing stay order, execution is allowed by the law. The effect of granting his present application would be to set aside the judgment for a second time in his favour despite it being an old one obtained 7 years ago on 22/11/2029. In the case of *NBI Civil Appeal NO. 80 of 2007- Rajesh Rughani Vs Fifty Investments Limited & Another* the Court of Appeal stated as follows: *“11. The test for dismissal of a suit for want of prosecution is stated in the case of Ivita -v- Kyumbu (1984) KLR 441). The test was expressed as follows:* *“The test is whether the delay is prolonged and inexcusable and if it is, can justice be done despite such delay. Justice is justice to both the plaintiff and the defendant so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents and or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time; the defendant must satisfy the court that he will be prejudiced by the delay or even that the plaintiff will be prejudiced; he must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff.” (Emphasis mine).* The plaintiff’s duty to pursue the re-hearing of the case ended with the lapse of the defendant’s orders which automatically reinstated the plaintiff’s judgment in the matter. She is not obliged to ascertain the status of the proposed counterclaim. She has nothing else to do but execute the judgment which process she has now set in motion. If his was a *bona fide* mistake on the part of his advocate only, this court would be seeing evidence of his assiduous attempts at the prosecution of the case, with or without payment of the thrown away costs, and would have excused him and allowed his application. As things stand now, it is as though he was happy that the stay was granted, and that no execution was being effected against him and he went to sleep. That delay even renders his previous conduct of non-participation in the hearing to be suspect, that it was a mere ruse to delay justice for the plaintiff. Having regard to the dicta in *Ivita* (supra) as quoted in *Rajesh Rughani (*supra) and in view of the above-described circumstances the parties herein find themselves in, I find that granting the orders the defendant seeks would be extremely oppressive to the plaintiff who is entitled to execution, but who would have to await several more years for another judgment if the present judgment were set aside a second time. No court of equity would countenance the defendant’s conduct that entails inordinate delay in handling simple tasks relating to the suit. The defendant’s conduct in the present case is thus not indicative of a diligent litigant and I decline the application dated 15th September 2025 and I order him to pay the costs thereof. On the other hand, I find no grounds upon which to decline the application dated 24/4/2025 since the judgment is in place and the plaintiff is entitled to execution especially after the long period that she has spent awaiting such. I therefore allow the application dated **24/4/2025** as prayed in **prayer nos 1 and 2** thereof. **Dated, signed and issued at Malindi on this 5th June 2026.**  **MWANGI NJOROGE** **JUDGE, ELC MALINDI.**